# Appendix — Brosius v. Warden

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1095%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 947

## Text

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278 F.3d 239

UNITED STATES COURT OF APPEALS,
FOR THE THIRD CIRCUIT.

Michael Todd BROSIUS, Appellant,
Vv.

WARDEN, UNITED STATES PENITENTIARY,
LEWISBURG, PA.

No. 01-1102.

Argued Sept. 7, 2001.
Opinion Filed Jan. 23, 2002.

Before: BECKER, Chief Judge, ALITO, and BARRY,
Circuit Judges.

OPINION OF THE COURT
ALITO, Circuit Judge.

This is an appeal by Michael Todd Brosius from an order
dismissing his petition for a writ of habeas corpus. Brosius
was convicted of unpremeditated murder following a general
court martial, and he is serving a sentence of imprisonment.
His conviction was affirmed by the Army Court of Military
Review, see United States v. Brosius, 37 M.J. 652 (A.C.M.R.
1993), and the Court of Military Appeals granted review but
summarily affirmed without opinion. See United States v.
Brosius, 39 M.J. 378 (C.M.A. 1994). Brosius, who is
imprisoned at the United States Penitentiary in Lewisburg,
Pennsylvania, then filed a petition for a writ of habeas corpus
under 28 U.S.C. § 2241 in the United States District Court for
the Middle District of Pennsylvania. The District Court denied

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his petition, Brosius v. Warden, 125 F. Supp. 2d 681 (M.D.Pa.
2000), and this appeal followed.

At approximately 4:40 a.m. on June 2, 1990, two sergeants
in the United States Army found Private First Class Tammy
Ivon near death in the parking lot adjacent to the enlisted
service members’ barracks at the United States Army Airfield
in Giebelstadt, Germany. When Ivon was found, her legs were
protruding from under a pickup truck, and her jeans had been
pulled down to her ankles. One of the sergeants noticed a man
whom he identified as Brosius staring at him from a nearby
road. After several seconds, Brosius, who had been a close
friend of Ivon’s, walked away. A short time later, von died.

An autopsy revealed that Ivon had been stabbed || times,
four times in the chest, five times in the abdomen, and once near
each eye. Ivon’s car was found parked next to the pickup, and
the back seat of the car was stained with blood. The sign-in log
for a gate on the base showed that Ivon’s car had returned at
2:30 a.m. with two occupants. A witness who had passed
Ivon’s car at about 3:00 a.m. stated that the windows were
fogged, he heard a grunt or groan coming from inside, and he
thought that the occupants were having sex.

Numerous witnesses described Brosius’s behavior during
the hours after Ivon’s body was found. A witness who saw him
at 7:25 a.m. described him as shocked and dazed. At 7:30 a.m.,
he told another witness that he had just come from working out
in the gym although the gym was closed at the time. He told
another witness that a girl who had given him a ride home two
hours earlier was dead and that he suspected her boyfriend.
Brosius then reportedly threatened to kill the boyfriend. A
short time later, when another witness asked Brosius if he had
heard about Ivon’s death, Brosius said that he had not. Brosius
then went to the laundromat and told a witness who later
testified for the prosecution that Ivon had given him a ride home
that night and that he might have been the last person to see her

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alive. He said that he had heard that she had been stabbed 1 |
times. He told another witness who testified for the defense
that a third person had accompanied Ivon and him when they
drove back to the base. At 11:10 a.m., he awakened his
roommate, screaming that Ivon’s boyfriend had killed her.

Word reached Brosius’s first sergeant that Brosius had been
with the victim on the night of her murder, and the first sergeant
then provided this information to agents from the Criminal
Investigation Division (“CID”). Brosius was called to the
orderly room, and Special Agents Douglas Allen and Tyrone
Robinson took Brosius into the first sergeant’s office and spoke
with him. Brosius stated that on the night of the murder, Ivon
had driven another soldier and him back to the base from a
local club. When Special Agent Allen asked the identity of the
third person, Brosius replied that he did not wish to say
anything about it. According to Special Agent Allen, Brosius
then requested to have a lawyer, his first sergeant, or some
other third party present to witness his statement. According to
Brosius, he asked to have a lawyer present, but Brosius
admitted that it was “possible” that he might have also
mentioned his first sergeant. Special Agent Allen told Brosius
that there were lawyers at the CID Headquarters (“the River
Building”) in Wuerzburg and that if he wanted to speak to a
lawyer or someone else, he should go there. Sergeant Pickett,
Brosius’s section sergeant, drove him to the River Building.
Sergeant Pickett and Brosius were acquaintances. App. 75.

At the River Building, Special Agent Mark Nash questioned
Brosius without administering any warning of rights. Special
Agent Nash told Brosius that the victim’s boyfriend was the
main suspect and that if Brosius “was worried about rights or
anything being violated, if you start to say anything that we think
would be incriminating against you, we would stop you and
advise you of your rights.” App. 19-20. Special Agent Nash
told Brosius that Captain Harper Ewing would be available to
witness the interview. Captain Ewing was the prosecutor
assigned to the case.

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When Captain Ewing arrived, Brosius recognized him as an
attorney who had represented him in an earlier civil matter.
Captain Ewing asked Brosius some questions about the prior
representation in order to ascertain whether there was a conflict
that would prevent him from prosecuting the case. Special
Agent Nash and Captain Ewing both told Brosius that Captain
Ewing was a prosecutor and was “working with the cops,” but
Brosius did not voice any objection. Captain Ewing
acknowledged, however, that Brosius said something to the
effect that he wanted an attorney present because he did not
trust the police and feared that they would twist his words.
App. 43-44. Captain Ewing testified that he thought that
Brosius was simply requesting someone to record his words
accurately and was not requesting legal representation, and
Special Agent Nash testified that Captain Ewing was present at
the interview for that purpose. Brosius did not ask Captain
Ewing any questions or request legal advice, but he testified at
trial that he thought that Captain Ewing was his lawyer because
Captain Ewing had represented him in an earlier matter and
was present while he was being questioned.

At the end of the interview, Brosius signed a written
statement. The chief points stated were that: 1) Ivon had given
Brosius a ride back to the base from the club; 2) another male
soldier, whom he described, had accompanied them; 3) Ivon
had a troubled relationship with her boyfriend; and 4) Brosius
had last seen her at about 2:55 a.m. Brosius’s statement seems
to have added little if anything of substance to what he had told
other witnesses during the hours immediately after Ivon’s body
was discovered. The CID agents also took the clothing that
Brosius had worn on the night of the murder, but it apparently
did not yield any incriminating evidence. After the interview,
Brosius returned to his unit.

Brosius returned for further questioning on June 4 and 5. At
this time, he was warned of his rights under Miranda v.
Arizona, 384 U.S. 436 (1966), and Article 31 of the Uniform
Code of Military Justice (““UCMJ”), 10 U.S.C. § 83. After

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receiving these warnings, Brosius waived his rights and
eventually confessed to the murder. He said that he had
returned to the base with Ivon and that no one else was in the
car. When they reached the parking lot, he stated, they started
to have intercourse, but he realized that this “wasn’t right”
because she was “like a sister” to him. He stated that he
stabbed her in the chest and stomach and then, because she was
looking at him, in the eyes. He said that he stabbed her about
nine times. At the end of the confession, however, he stated:
“I don’t believe I did it and if 1 did I want help. I feel like I
falsified the whole statement.”

The degree to which a federal habeas court may consider
claims of errors committed in a military trial has long been the
subject of controversy and remains unclear. Nearly 50 years
after it was decided, the Supreme Court’s decision in Burns v.
Wilson, 346 U.S. 137 (1953), is still the leading authority. In
Burns, two soldiers were tried by court martial, found guilty of
murder and rape, and sentenced to death. They filed habeas
petitions claiming that they had been denied due process of law.
Some of the claims appear to have presented pure questions of
fact (e.g., whether the petitioners were beaten and denied food
and sleep before they confessed), while other claims presented
either mixed questions or questions of law (e.g., whether, on
the undisputed facts, their confessions were coerced). The
district court dismissed the petition, and the court of appeals
affirmed. Burns v. Lovett, 202 F.2d 335 (D.C.Cir. 1952). The
court of appeals applied the following standard:

[H]abeas corpus will not lie to review questions raised and
determined, or raisable and determinable, in the established
military process, unless there has been such gross violation
of constitutional rights as to deny the substance of a fair trial
and, because of some exceptional circumstance, the
petitioner has not been able to obtain adequate protection of
that night in the military process.

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id. at 342. Applying this standard, the court reviewed each of
the petitioner’s allegations and found that none warranted
relief.

The Supreme Court affirmed by a vote of 6 to 2 but without
a majority opinion. One member of the majority, Justice
Minton, took the position that the Court could do no more than
inquire whether the court martial had jurisdiction. Burns, 346
U.S. at 146-48 (Minton, J., concurring in judgment). However,
the plurality opinion written by Chief Justice Vinson and joined
by three other Justices concluded that the Court’s inquiry was
somewhat broader. The plurality stated that the petitioners’
allegations “were sufficient to depict fundamental unfairness”
and that the district court could have reviewed these claims de
novo if the military courts had “manifestly refused to consider”
them. /d. at 142. But because the military courts had “heard
petitioners out on every significant allegation” and had “given
fair consideration to each of the[ir] claims,” the plurality stated,
the petitioners had “failed to show that this military review was
legally inadequate.” /d. at 144-46. The/plurality added that
“although the Court of Appeals may have erred in reweighing
each item of relevant evidence in the trial record, it certainly
did not err in holding that there was no need for a further
hearing in the District Court.” /d. at 146. Justice Jackson, the
sixth member of the majority, concurred in the result without
opinion. /d.

Justice Douglas, joined by Justice Black, dissented, arguing
that it was proper to determine in the habeas proceeding
whether, based on the undisputed facts, viz., that the petitioners
had been held incommunicado and repeatedly questioned over
a period of five days, the petitioners’ confessions had been
unconstitutionally obtained.' Burns, 346 U.S. at 154-55
(Douglas, J., dissenting).

' The ninth Justice, Justice Frankfurter, did not vote to affirm or reverse
but stated the Court should have put the case down for reargument. 346
U.S. at 150.

Ta

Although the rule that emerges from Burns is far from clear
in all respects, it appears that a majority (the plurality plus
Justice Minton) held that in considering a constitutional claim
involving a pure question of law or a mixed question of law
and fact, a habeas court may not exercise de novo review and
may not go beyond considering whether the military courts
“dealt fully and fairly” with the claim. Moreover, the
plurality’s treatment of the petitioners’ coerced confession
claim suggests that full and fair consideration was intended to
mean no more than “hear[ing]” the petitioners “out.” Burns,
346 U.S. at 144. Although it appears that the Judge Advocate
General, then the highest reviewing officer, had not addressed
the question whether the undisputed facts relating to the
confessions established a violation of the governing Supreme
Court precedent concerning unconstitutionally coerced
confessions,” the plurality rejected the coerced confession
claim with the simple statement that “there was exhaustive
inquiry into the background of the confessions-with the taking
of testimony from the persons most concerned with the making
of these statements.” /d. at 145.

Lower courts have had difficulty applying the Burns “full
and fair” test. The Tenth Circuit, which has the most
experience with habeas petitions filed by service members due
to the location of the Disciplinary Barracks at Ft. Leavenworth,
Kansas, has stated that “[t]he federal courts’
interpretation—particularly this court’s interpretation—of the
language in Burns has been anything but clear.” Dodson v.
Zelez, 917 F.2d 1250, 1252 (10th Cir. 1990); see also, e.g.,
Kauffman v. Sec. of the Air Force, 415 F.2d 991, 997
(D.C.Cir. 1969) (the test “has meant many things to many
courts”).

Our court’s treatment of Burns has also been far from
seamless. In United States ex rel. Thompson v. Parker, 399

* See Burns, 346 U.S. at 154-55 (Douglas, J., dissenting).

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F.2d 774 (3d Cir. 1968), we interpreted Burns narrowly. The
petitioner argued that his confession had been obtained in
violation of the Fifth Amendment and Article 31 of the UCMJ,
but we rejected that argument with the terse statement that “the
district court, after determining that the military courts had
given due consideration to petitioner’s contentions, quite
correctly refused to review and reevaluate the facts surrounding
petitioner’s allegations.” /d. at 776.

By contrast, in Levy v. Parker, 478 F.2d 772 (3d Cir. 1973),
rev'd on other grounds, 417 U.S. 733 (1974), we seemingly
read Burns more expansively. Levy, a military doctor, was
convicted by a general court martial of wilful disobedience of
the lawful command of a superior officer, uttering public
statements designed to promote disloyalty and disaffection
among the troops, and wrongfully and dishonorably making
intemperate, defamatory, provoking, contemptuous, dis-
respectful, and disloyal statements to other officers. See id. at
778. He contended that the articles under which he was
convicted were too vague to satisfy due process. We suggested
that a habeas court may examine de novo those constitutional
claims “not dependent upon any evidentiary or factual
construction.” /d. at 783. The actual holding of the case,
however, was limited to claims related to “the facial
unconstitutionality of [a] statute” under which a petitioner was
charged. /d. Any broader reading of Levy as requiring de novo
review over all questions of law would be inconsistent with
Burns, in which a majority of the Court (the plurality plus
Justice Minton) applied a deferential standard of review to the
claims that, on the undisputed facts, the habeas petitioners’
constitutional rights were violated. See Burns, 346 U.S. at 154
(Douglas, J., dissenting) (arguing that “the undisputed facts in
[the] case ma[de] a prima facie case that [the Supreme Court’s]
tule on coerced confessions expressed in Watts v. Indiana, 338
U.S. 49 (1949), was violated”’).

In the present case, we find it unnecessary to attempt any
further explication of Burns. Whatever Burns means, we have

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no doubt that at least absent a challenge to the constitutionality
of the statute under which the defendant was convicted, such as
that raised in Levy, our inquiry in a military habeas case may
not go further than our inquiry in a state habeas case. See
Burns, 346 U.S. at 142 (“In military habeas corpus cases, even
more than in state habeas corpus cases, it would be in
disregard of the statutory scheme if the federal civil courts
failed to take account of the prior proceedings . . .””) (emphasis
added). Thus, we will assume—but solely for the sake of
argument—that we may review determinations made by the
military courts in this case as if they were determinations made
by state courts. Accordingly, we will assume that 28 U.S.C.
§ 2254(e)(1) applies to findings of historical fact made by the
military courts. Under this provision, “‘a determination of a
factual issue made by a State court” is “presumed to be
correct,” and a habeas petitioner has “the burden of rebutting
the presumption of correctness by clear and convincing
evidence.” In considering other determinations made by the
military courts, we will assume that 28 U.S.C. § 2254(d)
applies. Under this provision,

[a]n application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States; or

(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding. .

See also Williams v. Taylor, 529 U.S. 362 (2000); Matteo
v. Superintendent, SCI Albion, 171 F.3d 877, 891 (3d Cir.
1999) (en banc).

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Brosius argues that his conviction must be reversed because,
prior to his two interviews on June 2, he was not given the
warnings prescribed by Miranda or Article 31(b) of the
Uniform Code of Military Justice, 10 U.S.C. § 831(b). Article.
31(b) differs from Miranda in that it requires warnings
whenever a service member is “suspected of an offense” and is
being interrogated. It may thus apply in situations in which a
service member is not in “custody.” See United States v.
Baird, 851 F.2d 376, 383 (D.C.Cir. 1988). We will discuss
Miranda and Article 31(b) separately.

A.

In Miranda, the Supreme Court held that warnings must be
administered before a person is subjected to “custodial
interrogation,” i.e., “questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way.” 384
U.S. at 444 (footnote omitted). In this case, the Army Court of
Military Review concluded that Brosius was not in “custody”
when he was interviewed on June 2, and the court credited
testimony that Brosius “voluntarily appeared before [the CID
agents] as a friend of PFC Ivon wishing to provide them with
information that might lead to the apprehension of her killer.”
37 M.J. at 660. Whether a person is in “custody” for purposes
of Miranda is not a factual question entitled to the presumption
of correctness, see Thompson v. Keohane, 516 U.S. 99 (1995),
and therefore we ask whether the determination of the military
courts that Brosius was not in custody is “contrary to, or

* This provision states:

No person subject to this chapter may interrogate, or request any
statement from, an accused or a person suspected of an offense
without first informing him of the nature of the accusation and advising
him that he does not have to make any statement regarding the offense
of which he is accused. . . .

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involved an unreasonable application of. clearly established
Federal law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1). We hold that under these
standards, the determination of the military courts must be
sustained.

Brosius argues that he was in custody at the time of the first
interview on June 2 because his first sergeant, the
highest-ranking noncommissioned officer in the unit, “sent” him
to the orderly room to speak with the CID agents and because
under Article 91(2) of the UCMJ, 10 U.S.C. § 891(2), Brosius
was required to obey the first sergeant’s orders. In making this
argument, Brosius relies on the statement of Special Agent
Allen that the first sergeant “sent” Brosius to the orderly room.
However, when Special Agent Allen’s testimony on this point
is viewed in context and together with other pertinent testimony,
it is apparent that there is no basis for overturning the Army
Court of Military Review’s determination that Brosius
appeared before the CID agents voluntarily.

Special Agent Allen testified as follows:

A....[T]he First Sergeant told us there was a soldier that
stated that he was with her the night before, and he asked if
we wanted to see hin:. We said, “Yes if he’s in the area you
can send him down.”

Q. Okay. So the First Sergeant sent him down to the orderly
room?

A. Yes, sir.

App. I.

Special Agent Nash explained the circumstances that led to
Brosius’s being “sent” to the orderly room.* Special Agent

* Special Agent Nash’s testimony on this point was apparently hearsay.
Under Mil. R. Evid. 104(a), a trial judge is not bound by the rules of
evidence other than those pertaining to privileges and may consider

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Nash testified that Brosius “approached some of our agents or
the First Sergeant, and the First Sergeant approached our agents
while they were in the unit, saying that he was with PFC Ivon,
and that he wanted to come and tell us what he knew about it.”
App. 18; see also id. at 30. When Brosius was asked how he
had come to be interviewed at the base, he stated “[s]omebody
from the orderly room . .. came down to my room where I was
at the time, and said that the police, CID, wanted to speak to me
about what happened the night before.” App. at 80.

Viewing all of this evidence together, we see no basis for
rejecting the determination of the Army Court of Military
Review that Brosius appeared voluntarily. Special Agent
Nash’s testimony directly supports that determination, and
Special Agent Allen’s use of the term “sent” is easily
reconcilable with his testimony. A person who has expressed
a desire to speak with someone may be “sent” to see that person
when the person is available. (“After some time in the waiting
room, the patient was sent in to see the doctor.”’)

We thus then turn to the second interview conducted on June
2 at the River Building. Brosius argues that he was in custody
at the time of this interview because, according to the opinion
of the Army Court of Military Review, Special Agent Allen
“instructed” Brosius to go to the River Building, 37 M.J. at
655, and, according to testimony given by Special Agent
Robinson, Brosius was then “escorted” to the River Building
by his section sergeant. App. 123. Brosius contends that, in the
military, the word “escort” is synonymous with the word
“guard.” The government, by contrast, argues that Brosius had
a friendly personal relationship with his section sergeant and
that the sergeant simply gave him a ride to the River Building.

hearsay in a suppression hearing. See United States v. Dababneh, 28
M.J. 929, 934 (N.M.C.M.R. 1989) quoting Bourjaily v. United States,
483 U.S. 171, 178 (1987). Hearsay may be considered in a suppression
hearing in a federal court. United States v. Raddatz, 447 U.S. 667, 679
(1980).

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The Army Court of Military Review, as previously noted,
concluded that Brosius voluntarily appeared before the CID
agents, and we accept that determination. Special Agent Allen
testified as follows concerning the circumstances that led to
Brosius’s appearance at the River Building:

Q.... [W]hen he said that... he didn’t want to talk to you,
what did you do?

A. Well, we had several other people to talk to, and I told
him “There’s two lawyers down at the River Building,” you
know, if he wanted to talk to a lawyer about it or if he
wanted to talk to someone about it, “go down there and
someone would be glad to talk to you about it.”

App. 4-5. (emphasis added). Special Agent Allen added:

A. ... I said, “Well, if you don't want to talk to us, there
are attorneys down at the River Building right now, and if
you want to go down there and talk to them about it, go
ahead.”

Q. And then they did he?

A. I think he did. He had a Sergeant there with him. I think
it was his section Sergeant, whatever. | think he took him
down there.

App. 13 (emphasis added). |

Brosius himself said little about the circumstances that
brought him to the River Building, stating only that his section
sergeant, who was “an acquaintance,” gave him a ride to that
facility. App. 75.

Considering the relevant portions of the record that have
been brought to our attention, we see no basis for rejecting the
determination of the Army Court of Military Review that
Brosius was not in custody when he spoke with the agents at the
River Building. According to Special Agent Allen, Special
Agent Robinson and he did not direct Brosius to go to the River
Building but merely told him to go there “if he wanted to talk to

”°

a lawyer about it or if he wanted to talk to someone about it.
Brosius himself does not appear to have testified that he felt
compelled to go to the River Building. Since the River
Building was about 12 miles from the base, Brosius needed
transportation to get there. Special Agent Robinson’s use of the
term “escorted” may simply mean that the section sergeant gave
him a ride. In ordinary speech, a person who is “escoried”’ is
not necessarily deprived of freedom of movement. If the
military courts did not think that Special Agent Robinson’s use
of the term carried a special meaning due to the military
context, we are not inclined to second guess that interpretation.
Accordingly, we see no ground for holding that Brosius’s
Miranda rights were violated on June 2.

B.

We now consider Brosius’s argument that the failure to give
him warnings on June 2 violated his rights under Article 31(b)
of the UCMJ. As noted, Article 31(b) applies whenever a
service member who is “suspected of an offense” is
interrogated, whether or not the member is in custody.
Statements obtained in violation of Article 31(b) may not be
received in evidence at a court martial against the person who
made them. 10 U.S.C. § 83(d).

The parties disagree sharply about whether Brosius was a
suspect at the time of the June 2 interviews. Brosius maintains
that a reasonable investigator would have regarded him as a
suspect immediately upon learning that Ivon had driven him
back to the base alone in the early morning hours of June 2. The
government argues that the agents were focusing on other
suspects, chiefly Ivon’s estranged boyfriend, and did not regard
Brosius as a suspect.

We find it unnecessary to decide whether Brosius was
“suspected” of an offense on June 2. Even if he was
“suspected” and even if the statements that he provided on June
2 should have been suppressed under 10 U.S.C. § 83(d), the
failure to suppress those statements was harmless error. See

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Hassine v. Zimmerman, 160 F.3d 941, 949 (3d Cir. 1998) (in
a habeas corpus proceeding, an error is harmless if it did not
have a substantial and injurious effect or influence on the
verdict). If the confession that Brosius made on June 4 and 5 is
not suppressed, a subject that we discuss below, the statements
made on June 2 were obviously harmless. As noted, at the June
2 interview, Brosius stated that: 1) PFC Ivon gave him a ride
back to the base from a nightclub; 2) another male soldier rode
with them; 3) she had a troubled relationship with her
boyfriend; and 4) he had last seen her ai aout 2:55 a.m. on the
moming of the murder. These statements added nothing to
Brosius’s later confession. Indeed, they do not appear to have
added much if anything to evidence available from other
witnesses or sources. Prior to the June 2 interview, Brosius
had told other witnesses who testified at trial that he had driven
home with the victim on the night of her murder; that he might
have been the last person to see her alive; and that another
person had accompanied them in the car. In addition, the log
book at a gate revealed that Ivon’s car had returned at 2:30 a.m.
with two occupants. Accordingly, the failure to suppress
evidence obtained during the June 2 interview was harmless
under any standard.

Brosius, however, contends that, because warnings were
improperly withheld on June 2, his subsequent confession on
June 4 and 5 must be suppressed. We cannot agree. In Oregon
v. Elstad, 470 U.S. 298 (1985), the Supreme Court considered
the appropriate remedy when a suspect in custody is first
interviewed without Miranda warnings and is later given
proper warnings and interviewed again. In Elstad, the
defendant was taken into custody for committing a burglary. /d.
at 300-01. He was initially questioned at the scene of the arrest
and made an incriminating admission. /d. After he was taken to
the police station, Miranda warnings were given, he signed a
written waiver, and confessed to the crime. /d. at 301-02. The
state appellate court held that, even if the confession had not
resulted from actual compulsion, the defendant’s initial
statement had a coercive impact because it had let the “‘cat.. .

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out of the bag.’” /d. at 303 (citation omitted). The state
appellate court consequently held that the later statement had to
be suppressed. /d.

The Supreme Court reversed, holding that “absent
deliberately coercive or improper tactics in obtaining the initial
statement, the mere fact that a suspect has made an unwarned
admission does not warrant a presumption of compulsion.” /d.
at 314. The Court added that “[a] subsequent administration of
Miranda warnings to a suspect who has given a voluntary but
unwarned statement ordinarily should suffice to remove the
conditions that precluded admission of the earlier statement.”
Id. at 314.

That is precisely what occurred here. Brosius made
unwarmed statements on June 2. He went home, and two days
passed. On June 4th, he was called back for a second
interview. He was then given proper warnings, and he
subsequently confessed. There is no reason to believe that
these later statements were not “knowingly and voluntarily
made.” Elstad, 470 U.S. at 309.

Brosius argues that the circumstances surrounding the
interview at the River Building were improper because Brosius
was led to believe that Captain Ewing, who was actually a
member of the prosecution team, was serving as Brosius’s
attorney. The government responds that, although Captain
Ewing had previously represented Brosius in an unrelated
matter, Captain Ewing and the agents made it clear that Captain
Ewing was working with the prosecution in relation to the Ivon
murder investigation.

Captain Ewing’s role at the June 2 interview at the River
Building was inadvisable, but it does not call for the
suppression of the confession that Brosius provided days later
after receiving proper warnings. Brosius relies on the
statement in Elstad that a prior failure to warn may call for the
suppression of a subsequent statement made after receiving
proper warnings if “deliberately coercive or improper tactics”

17a

were used in the first interrogation. 470 U.S. at 314. This rule,
however, relates to situations in which the tactics used in the
first, improper interrogation had a coercive effect that led to the
later admissions. Nothing of that sort happened here. As we
have noted, Brosius did not provide any new, incriminating
information during the interviews on June 2. He was not even
in the position of the defendant in E/stad, who had “let the cat
out of the bag” when he was initially questioned. Brosius’s
statements during the June 2 interviews cannot have coerced
him to make his subsequent confession.

IV.

Brosius’s final argument is that his confession should be
suppressed under Edwards v. Arizona, 451 U.S. 477 (1981).
In Edwards, the Supreme Court held that “an accused. . .
having expressed his desire to deal with the police only through
counsel, is not subject to further interrogation by the authorities
until counsel has been made available to him, unless the
accused himself initiates further communications, exchanges, or
conversations with the police.” /d. at 484- 85. Brosius
maintains that he requested counsel during the interview on
June 2 and therefore his subsequent questioning without counsel
was improper.

We reject Brosius’s Edwards argument. Edwards applies
only where the suspect makes a request for counsel while in
custody. See, e.g., United States v. Wyatt, 179 F.3d 532, 536
(7th Cir. 1999) (citing cases); United States v. Bautista, 145
F.3d 1140, 1146 (10th Cir. 1998); cf Alston v. Redman, 34
F.3d 1237, 1249 (3d Cir. 1994) (Edwards does not apply
where counsel was requested outside the context of “custodial
interrogation”). Here, because Brosius was not in custody on
June 2, Edwards does not apply.

V.

For these reasons, we affirm the order of the District Court.

18a
125 F. Supp. 2d 681

UNITED STATES DISTRICT COURT,
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA.

Michael Todd BROSIUS, Petitioner,
Vv.

WARDEN, UNITED STATES PENITENTIARY,
LEWISBURG, PA., Respondent.

No. Civ.A.1:CV-99-1387.

Dec. 13, 2000.

MEMORANDUM
CALDWELL, District Judge.

1. Introduction.

In 1990, Michael Todd Brosius, then a member of the United
States Army, was charged in a military court-martial with
premeditated murder under Article 118, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 918. He was convicted
of unpremeditated murder and sentenced to life imprisonment,
later reduced to seventy-five years.

Brosius, an inmate at USP-Lewisburg, Pennsylvania, has
filed a counseled petition for a writ of habeas corpus under 28
U.S.C. § 2241. Asserting that he was in custody and also
objectively a suspect at the time, he argues that inculpatory
statements he made to Army investigators were obtained in
violation of his Fifth Amendment nmght against
self-incrimination, and his right to remain silent under both
Miranda v. Arizona, 384 U.S. 436 (1966), and military law at

19a

Article 31, UCMJ, 10 U.S.C. § 831(b). He also contends that
the statements were obtained after two requests for a lawyer
were ignored. Finally, he maintains that the lawyer the Army
supposedly provided for him, but who was really a prosecutor
and not acting on his behalf, had an ethical conflict that
compounds the violations. He has filed a motion requesting
oral argument or a hearing on his claims.

Il. Background.

At about 4:40 a.m., on June 2, 1990, at a United States Army
base in Giebelstadt, Germany, Private First Class Tammy Ivon
was discovered near death from multiple stab wounds. She
later died from the injuries.

The Army’s Criminal Investigation Division (CID) began an
investigation that morning. During the course of that
investigation, on the evening of June 2, CID officers had a brief
interaction with the petitioner and then later interviewed him.
He was not advised of his rights on either occasion. The
questioning led to additional interviews on June 4 and 5. On
those occasions, Brosius was advised of his rights, including
his right to remain silent and to have the assistance of an
attorney, and he executed signed waivers of his rights. As a
result of the questioning on the latter two days, Brosius made a
written confession, dated June 6. At the close of this statement,
he stated, “I don’t believe | did it and if 1 did 1 want help. I feel
like I falsified the whole statement.” United States v. Brosius,
37 M.J. 652, 657 (A.C.M.R. 1993). All of the petitioner’s
Statements were used against him at trial. There was no
forensic evidence tying him to the crime. /d. at 655.

Brosius focuses on the propriety of the June 2 questioning,
asserting that this questioning was violative of his constitutional
rights and of his rights under military law, tainting the
statements given later. For the first time, he also argues in this
petition that the questioning on June 4 and 5 was improper
because it failed to scrupulously honor his invocation of the

20a

right to remain silent on June 2, citing Michigan v. Mosley, 423
U.S. 96.

Immediately before the court-martial, the June 2 questioning
was the subject of an October 9, 1990, suppression hearing
under Article 39(a), UCMJ, 10 U.S.C. § 839(a). CID agents
Douglas M. Allen and Mark Nash testified at the hearing, along
with the petitioner. After hearing the testimony, the military
judge presiding over the court-martial denied Brosius’s motion
to suppress, making certain findings of fact. We provide the
following summary of the hearing, taken from respondent’s
exhibit | in doc. 26 and petitioner’s exhibit 2 in doc. 33.

Allen testified at the suppression hearing as to his contact
with Brosius on the day of June 2, 1990. Allen and Tyrone
Robinson were two of the agents investigating the killing. At
that time, the CID already had two suspects, Private First Class
David Sparks, Ivon’s boyfriend, and Specialist Randy
Hestekin, Sparks’s roommate. Allen had taken Sparks to the
hospital that day for a sexual-assault determination, (Doc. 26 at
138), and Hestekin had returned to the base in the early moming
hours with blood on his shirt, signaling another soldier to be
quiet when he was seen. (/d. at 158).

Allen was interviewing witnesses in the orderly room of
“HHP, 8/43” in Giebelstadt, (Doc. 33 at 135), “a whole string
of guys waiting to talk.” (/d. at 136). The first sergeant told the
agents “there was a soldier that stated that he was with her the
night before,” and the first sergeant “asked” if they “wanted to
see him.” /d. They replied, “Yes, if he’s in the area you can
send him down.” /d. The first sergeant then “sent him down.”
Id.

Nash testified that no one from the CID requested that
Brosius be sent to them. Although not based on personal
knowledge, he said that Brosius “approached some of our
agents or the First Sergeant” and said that he wanted to provide
information. (/d. at 152-53).

2la

Brosius testified that he could not remember telling anyone
that he had been with Ivon the night before or that he had
wanted to speak to the police about it. (/d. at 215). He said
that he spoke with the CID because someone from the orderly
room came to his room and said that the CID wanted to speak
to him about it. /d.

Brosius came to the orderly room in the evening. He paced
around and seemed upset. Allen and Robinson took him into
the first sergeant’s office. Brosius said that if he saw Sparks or
Hestekin, he would do them bodily harm, (id. at 138), that Ivon
had been like a sister to him. (/d. at 147). He also told the
agents “he was with Ivon the night before. That there was
someone else with them.” (/d. at 137). She had given him (and
the other man) a ride back to the base. (/d. at 138). Allen
asked who the third person was. According to Allen, Brosius
replied, “Weil, | don’t want to say anything about it.” (/d. at
137). Allen continued, “He didn’t want to tell me because he
said that he didn’t want to say anything unless his first sergeant
or a lawyer or someone with his interests was standing there to
hear what we were saying, and writing it down or whatever.”
(/d. at 139, 148). Allen had “several other people to talk to,”
id., so he told Brosius there were two lawyers at the River
Building, and if he wanted to talk to a lawyer or someone, to go
there. (/d. at 139).

The River Building was in Wuerzburg, about twenty
kilometers away, where the CID office and military police are
located. (/d. at 148-49). On cross-examination, Allen admitted
he did not know why they did not bring the first sergeant n
during any questioning if Brosius had mentioned him as a
witness. (/d. at 146). Allen did not consider Brosius a suspect
at that time. If he had he would have advised him of his nights.
(/d. at 142}. Brosius’s section sergeant, a supervisory
noncommissioned officer, also described as an “acquaintance
of Brosius,” (/d. at 210), drove the petitioner to the River
Building. (/d. at 148).

22a

Brosius recalled the conversation differently. He testified he
said he would not say anything until he had a lawyer present.
He did not remember mentioning the first sergeant, although he
admitted it was possible. (/d. at 206, 215).

At the River Building, CID officer Mark Nash questioned the
petitioner. Nash testified as follows. Brosius waited his turn
like everybody else. (/d. at 150). Like the other interviews, it
was conducted in the polygraph suite and a written statement
was taken in Nash’s office. Nash did not advise Brosius of his
rights. (/d. at 152). Another CID agent, David Schindler, was
also present at the interview. (/d.).

According to Nash, Captain Harper M. Ewing, the
prosecutor assigned to the case, was also there because Brosius
had said that he wanted a “witness” present so that the CID did
not misconstrue his words. (/d. at 152). Nash told Brosius that
Ewing “was with the prosecuting office, and that he was a
prosecuting attorney.” (/d. at 154). Petitioner’s response to
that was “That’s fine.” /d. Because Brosius appeared nervous,
Nash also told him before the interview that Sparks was their
main suspect and that if he was “worried about rights or
anything being violated, if you start to say anything that we think
would be incriminating against you, we would stop you and
advise you of your rights.” (/d. at 154-55). Petitioner replied,
“Okay.” /d. In the past, Nash had given this same advice to
other witnesses and to victims as well. (/d. at 167). Nash
thought Brosius was agitated because Ivon had been a friend.
(Id. at 154).

Ewing testified that he told Brosius that he “was working
with the cops,” (id. at 178), so Brosius would know that he
“was not there specifically for him.” (/d. at 179). When asked
why he did not simply make that clear, he said that he thought
that informing petitioner that he was working with the MPs
would be enough. /d. He also said that he (Ewing) had been
told that one of the CID agents had informed Brosius that he
was the prosecutor in the case. /d.

23a

On cross-examination, the following exchange occurred:

Q. ... The phrase, “I want a lawyer because | don’t trust the
cops because they’ll twist my words,” did you hear that
phrase that day?

A: I think so.
Q: Did you hear Specialist Brosius use that phrase?

~ *

A: I think I did, yes, or something similar.
Q: Was that what you thought he wanted a lawyer for?
A. Yes.

(/d. at 184).

Brosius testified that he did not remember being told that
Ewing was a prosecutor but that Ewing informed him that he
“worked with the cops.” (/d. at 207). Even though Ewing
worked with the cops, Brosius still thought Ewing was his
assigned lawyer because “‘a lawyer was a lawyer,” (id. at 208),
because Ewing had worked on a legal matter for him before,
(id. at 207), and because Ewing was with him while he was
being interviewed by Nash and Schindler. (/d. at 208).
Petitioner never asked Ewing if he had been assigned to him.
(/d. at 209). Not did he testify that while he was at the River
Building he had requested a lawyer. Additionally, while he
was being questioned on June 4 and 5, he never asked to see his
“assigned” lawyer, Captain Ewing. (/d. at 211).

Ewing did not recognize Brosius, but Brosius recognized
Ewing as the lawyer who had assisted him in a civil matter a
few years before. Ewing asked Brosius about the civil matter
(and apparently satisfied himself that there was no conflict
since the previous matter was not related to the criminal
investigation). (/d. at 178). On June 6, 1990, Ewing was
removed as the prosecutor. (Doc. 33, exhibit 5).

Ewing’s presence at the questioning in the polygraph suite
came about after Captain Robin Hall, senior trial defense

24a

counsel, consulted with Major John King, the deputy
prosecutor, who approved of Ewing’s presence. (/d. at 182).
In all the other interviews, Ewing stood outside the suite,
observing through a two-way mirror. (/d. at 166). Nash never
thought to have Hall attend rather than Ewing because Brosius
was not a suspect or an accused at that time. (/d. at 163).

The interview proceeded with Brosius’s cooperation. (/d.
at 155). He gave information freely. (/d. at 159). At that time,
both Sparks and Hestekin were being held in cells at the MP
station. (/d. at 157-58). Nash concentrated his questioning on
Sparks and his relationship with the victim. (/d. at 156).
During the interview, Brosius never sought legal advice from
Ewing. (/d. at 163). He voluntarily made a sketch of the
parking lot where Ivon let him out. (/d. at 168). Eventually,
Brosius did sign a written statement that night about 1:10 p.m.
The statement indicated that the victim had given Brosius a ride
back to the base from a night club, that she had also given
another male soldier a ride back, that she and Sparks had a
troubied relationship, and that petitioner had last seen her
around 2:25 a.m. on the morning of June 2. (Doc. 33, exhibit 1).

Nash testified that the petitioner was there of his own free
will. They never told him he could leave, but he was there
simply to help the CID officers. (/d. at 159). Brosius left at the
end of the interview, returning to his unit. (/d. at 161).
However, before he left, the CID agents took his clothing
because it was the same clothing he had worn to the night club.
(Doc. 33, exhibit 4).

According to Nash, petitioner only became a suspect on the
morning of June 3 when the CID investigators had a meeting
about the case. (/d. at 171-72). They focused on him because
he had said there was another person in Ivon’s car, but the gate
guard logs indicated only two persons had been in the car when
it returned to the base early on the moming of June 2. (/d. at
173). Nash also said there was some other evidence leading to
Brosius that could be described by agent Schindler and another
agent named Blackmon. (/d. at 173). However, this other

evidence was never specified. Nash did not detail how the
shift in focus to petitioner happened, but he did mention earlier
in his testimony that “Hestekin was a very strong suspect until
we started verifying his alibis.” (/d. at 158). Nothing was said
about how Sparks was dropped from the investi gation.

Nash knew about the logs before he interviewed petitioner,
and they were “looking aggressively for that one person” noted
by the guards. (/d. at 160). Shortly before the interview or Just
as it began, he found out that Brosius had said there was a third
person in the car. (/d. at 160-61). He did not consider this
suspicious at the time since from his own experience on guard
duty, guards can be mistaken. (Jd. at 161).

Ewing testified that he asked questions only toward the end
of the interview. (/d. at 180). He asked Brosius about the third
person in the car. Brosius gave a graphic description. (/d. at
181). Later, Ewing told the CID to track this person down. /d.

Ewing did not know that the gate guards had noted only two
people in the car until after the interview. (/d. at 185). This
knowledge “would have led him” in the “direction” of making
Brosius a suspect. (/d. at 18S).

In denying the suppression motion, the military judge made
the following findings of fact, in pertinent part:

4) At the beginning the CID had two Suspects, Sparks and
Hestekin.

5) On the moming of 2 June, both of those individuals were
apprehended.

6) In the afternoon of 2 June, Special Agent Allen and others
began interviewing members of the accused’s battery.

7) The accused’s First Sergeant, F lynn, told Special Agent
Allen that there was a soldier who was in his battery, who
was with the victim that night.

26a

8) The CID told the First Sergeant that they wanted to
interview this soldier.

9) This soldier was the accused and he was called to the
orderly room.

10) The accused there met Special Agent Allen and another
CID agent.

12) In the office and even outside the accused was pacing.
His fists were clenched. He said the victim was like his
sister. He wouldn’t sit down. He also indicated that he
wanted to do bodily harm to Sparks and Hestekin.

13) The accused told the CID that he would talk, but he
wanted a lawyer or his First Sergeant present.

14) Allen told the accused if he wanted a lawyer, he should
go over to the River Building which is the CID headquarters
in Wuerzburg.

15) The accused then went to the CID headquarters with
Pickett [the Section Sergeant].

16) At the building the accused met Special Agent Nash.

19) The accused spoke briefly with Ewing and reminded
Ewing that Ewing had represented the accused in a legal
assistance matter about 2 years previous to that time.

20) Ewing told the accused that he was then working with
the cops.

24) In the polygraph suite the conversation was calm.

26) During both interviews the accused mentioned that a
third person was in the car with the accused and the victim.

27a

27) Nash at the time believed that the accused was not a
suspect.

28) On the next day in the CID meeting, the fact that the
accused said there were three in the car, and a gate guard
said he only saw two, along with other evidence, caused the
CID to believe that the accused should be considered a
suspect.

37) Special Agent Allen did not suspect the accused of
criminal involvement in the death of the victim.

38) There were no grounds for him to do so.
39) He was not required to give the accused a warning.

40) The request for counsel from the accused at that time
was not for the purpose of representing him, or to have
counsel deal with the police for him.

41) If the accused had a purpose other than as a ploy or ruse,
it was to have an impartial observer.

42) At the River Building the accused did speak to Captain
Ewing.

43) The accused was clearly advised by Captain Ewing, that
Ewing was not representing him.

44) No reasonable man under the circumstances could
believe that Ewing was representing the accused.

45) The accused knew that Ewing was not representing him.

46) Agent Nash did not suspect the accused of criminal
involvement.

47) Nash had no reasonable grounds to believe that the
accused was culpably involved.

48) That the accused said three people were in the car is as
readily explainable as the gate guard making a mistake.

49) Ewing did not act in any way as the accused’s counsel in
the interview in the polygraph suite.

50) The accused’s nervousness in Nash’s office after the
interview when the four were present, was not reasonable
grounds to suspect him.

51) After all, his friend had just been murdered.

52) On 4 and 5 June the accused was properly warned of his
rights under Article 31 and Miranda, Tempia.'

53) On those dates the accused voluntarily and knowingly,
and intelligently waived all of his rights.

54) The accused testified that he didn’t have counsel there
because he believed Ewing was his lawyer and working on
his behalf.

55) 1 find this statement to be not factual.

56) I find that the accused knew Ewing was not his lawyer
and not working on his case, or in his behalf.

57) I find that the accused was not confused in any way about
Ewing’s position.
(/d. at 224-25) (brackets and footnote added).
The military judge concluded as follows:
To recap, I find as follows:

Neither Allen nor Nash believed, nor reasonably believed,
nor should they have reasonably believed, that the accused
was a suspect on 2 June 1990. That no ground existed for
them to believe that the accused was a suspect.

I find that Ewing did not represent the accused. I find that
the accused knew that Ewing did not represent him. I find

' United States v. Tempia, 37 C.M.R. 249, 1967 WL 4235 (C.M.A.
1967), extended Miranda to military personnel.

29a

that the accused never made a request for counsel to advise
him or represent him. | find that the request for counsel was,
at most, a ploy or a ruse by the accused. At best it was a
request for an impartial observer.

I find that the accused properly waived his rights to counsel
after being properly advised of all his rights. I find that the
accused never requested counsel to represent him, so
Edwards versus Arizona does not apply.

(/d. at 229-30).

There was also some testimony at the investigation hearing
heid under Article 32, UCMJ, 10 U.S.C. § 832, on which the
petitioner also relies. CID agent Schindler admitted they were
“walking the gray area” in the way they questioned Brosius.
(Doc. 33, exhibit 2 at 782). Nash stated at that hearing: “I'll
be honest, sir. I believe that what was stated was, ‘That we do
have an attorney here. Okay, you requested one. You
know—’” (/d. at 877).°

Ill. Appellate History.

After his conviction, Brosius appealed to the United States
Army Court of Military Review (now the Army Court of
Criminal Appeals). Unlike civilian appellate courts, this court
has the authority to review the factual findings of the military
judge.* The petitioner contested, among other things, the

> An Article 32 hearing is apparently the military counterpart to a
grand-jury proceeding.

* Although at the same time Nash also said that it was made clear to
Brosius that Ewing “was working either as a prosecutor or the cops or
whatever.” /d. Also, Nash stated that Brosius’s response was: “Okay.
That’s cool. I just want somebody to witness what I was saying to you
guys.” /d.

* At the time of Brosius’s court-martial, Article 66, UCMJ, 10 U.S.C.
§ 866(c), provided as follows:

30a

military judge’s decision not to suppress his statements.
Specifically, he argued that Nash should have read him his
rights at the River Building because he was then objectively a
suspect, he was in custody, and he had asked to see a lawyer.
(Doc. 26, exhibit 3 at 6). As part of the argument concerning
custody, the petitioner contended that he had to report to the
orderly room or he could have been disciplined for failing to
follow orders, citng United States v. Tempia, 37 C.M.R. 249,
1967 WL 4235 (C.M.A. 1967). (/d. at 7).

The Court of Military Review rejected this argument on the
basis of the following factual recitation:

Unfortunately for the appellant, the evidence does not
support his characterization of the events of 2 June. The
appellant was neither in custody nor reasonably suspected of
killing PFC Ivon by the CID agents with whom he spoke on
that date. The CID agents testified that the appellant
voluntarily appeared before them as a friend of PFC Ivon
wishing to provide them with information that might lead to
the apprehension of her killer. The fact that he was
distraught or grief-stricken would not lead a reasonable
criminal investigator to have suspected him of an offense
since that is not suspicious behavior from a friend of a crime
victim.

Moreover, the appellant’s request that a lawyer be present
while he spoke with the CID did not, under the
circumstances, constitute a request for legal counsel even

(c) In a case referred to it, the Court of Military Review may act only
with respect to the findings and sentence as approved by the convening
authority. It may affirm only such findings of guilty, and the sentence
or such part or amount of the sentence, as it finds correct in law and
fact and determines, on the basis of the entire record, should be
approved. In considering the record, it may weigh the evidence, judge
the credibility of witnesses, and determine controverted questions of
fact, recognizing that the trial court saw and heard the witnesses.

Article 66(c) now refers to the Court of Criminal Appeals.

3la

assuming there was a custodial interrogation. Invocation of
the nght to counsel must be unequivocal and unambiguous.
United States v. Schake, 30 M.J. 314, 317 (C.M.A. 1990);
United States v. Dock, 35 M.J. 627 (A.C.M.R. 1992), pet.
granted, 38 M.J. 173 (C.M.A. 1993). While the appellant
said that his purpose for requesting that CPT Ewing be
present was to look out for “his interests,” in context, he was
referring to something other than his potential culpability for
the killing. We therefore reject this assigned error as
unmeritorious.

United States v. Brosius, 37 M.J. 652, 660 (A.C.M.R. 1993).

The petitioner then appealed to the United States Court of
Military Appeals (now the Court of Appeal for the Armed
Forces), raising the same issue. On this appeal, he argued that
he was a suspect based on the additional fact that his clothing
had been taken after the questioning at the River Building,
reasoning that the police do not seize the clothing of witnesses.
(Doc. 26, exhibit 6 at 40, 42).

The Court of Military Appeals granted review and then on
January 26, 1994, summarily affirmed without opinion the
decision of the Army Court of Military Review. United States
v. Brosius, 39 M.J. 378 (C.M.A. 1994). (Doc. 26, exhibit 7).

This habeas petition followed on August 4, 1999.
IV. Discussion.

A. Standard of Review.

The plurality opinion in Burns v. Wilson, 346 U.S. 137
(1953), has been taken as establishing that a civilian court may
only review decisions of military courts to determine if the
latter gave the petitioner's claims full and fair consideration.
See Levy v. Parker, 478 F.2d 772, 782-83 (3d Cir. 1973),
rev'd on other grounds, 417 U.S. 733 (1974); Jordan v.
Warden, 1998 WL 614694, at *2 (M.D.Pa.). If the military
courts have done so, then the inquiry is at an end, and the

32a

habeas petition must be dismissed. Lips v. Commandant, 997
F.2d 808, 811 (10th Cir. 1993); Jordan, supra, 1998 WL
614694, at *2.

The courts have had some difficulty in applying the “full and
fair consideration” test. See Levy, supra, 478 F.2d at 781 n. 9
(the test is “easy to state, but difficult to define and to apply”)
(quoted sources omitted); Kauffman v. Secretary of the Air
Force, 415 F.2d 991, 997 (D.C.Cir. 1969) (the test “has meant
many things to many courts”); Dodson v. Zelez, 917 F.2d 1250,
1252 (10th Cir. 1990) (“The federal courts’
interpretation—particularly this court’s interpretation—of the
language in Burns has been anything but clear.”).

However, it appears that the test has been channeled
somewhat by a four-factor analysis expressed in Calley v.
Callaway, 519 F.2d 184 (Sth Cir. 1975) (en banc). In Calley,
the Fifth Circuit stated that before a federal court can act on a
habeas petition challenging a conviction under military law, the
following factors should be considered:

1. The asserted error must be of substantial constitutional
dimension... or so fundamental as to have resulted in a
miscarriage of justice.

Id. at 199 (italics omitted).

2. The issue must be one of law rather than of disputed fact
already determined by the military tribunal.

Id. at 200 (italics omitted).

3. Military considerations [must not] warrant different
treatment of constitutional claims.

Id. (italics omitted) (brackets added).

4. [Whether] [t]he military courts [did not] give adequate
consideration to the issues involved and appi[ied]
[im]proper legal standards.

33a

Id. at 203 (italics omitted) (brackets added). See also Dodson,
supra, 917 F.2d at 1252-53 (approving use of the Calley test
and noting that it was presaged by Tenth Circuit cases). We
will use this test in disposing of the instant petition.”

We elaborate here on the second factor. In regard to the
facts, we will not reevaluate or reassess the evidence. See
Burns, supra, 346 U.S. at 144; Dodson, supra, 917 F.2d at
1254; Jordan, supra, 1998 WL 614694, at *2 (“It is not the
function of the civil courts to reevaluate or reassess the
evidence previously presented to the military courts.”). We
will review certain mixed questions of law and fact, such as
whether the petitioner was in custody, see Thompson v.
Keohane, 516 U.S. 99 (1995), or a suspect. See United States
v. Muirhead, 51 M.J. 94 (U.S.A.F.); United States v. Meeks,
41 M.J. 150 (C.M.A. 1994). But we will not disturb the
military courts’ underlying findings of narrative or historical
facts, see Thompson, supra, an approach especially proper, of
course, when the parties have presented conflicting evidence.

B. The Petitioner’s Claim That He Was a Suspect on the
Evening of June 2, 1990.

The Petitioner argues that he became a suspect during his
interaction with CID agent Allen on June 2 and was entitled to
the nghts wamings set forth in Article 31(b), UCMJ, 10 U.S.C.
§ 831(b). Article 31(b) requires that, before being interrogated,
a suspect must be told that he can remain silent and that any

* We reject the respondent’s contention that the Tenth Circuit in Lips,
supra, decided after Dodson, retreated from the Calley test. Lips set
forth the Calley test as part of it analysis. Additionally, the Tenth Circuit
has continued to rely on the Calley test after Lips. See Reed v. Hart, 17
F.3d 1437 (10th Cir. 1994) (unpublished disposition in Westlaw at 1994
WL 60398); King v. Berrong, 25 F.3d 1057 (10th Cir. 1994)
(unpublished disposition in Westlaw at 1994 WL 161336). District
courts within that Circuit have also done so. See White v. Nickels, 2000
WL 1073716 (D Kan.).

34a

statement he makes can be used against him at a court-martial.
It provides as follows:

(b) No person subject to this chapter may interrogate, or
request any statement from an accused or a person suspected
of an offense without first informing him of the nature of the
accusation and advising him that he does not have to make
any statement regarding the offense of which he is accused or
suspected and that any statement made by him may be used
as evidence against him in a trial by court-martial.

The Article is the military parallel to Miranda warnings, but
as noted by the Court of Appeals for the Armed Forces, unlike
in the Miranda setting, Article 31(b) warnings are required
whenever a person is a suspect, not when the person is also in
a custodial situation. United States v. Swift, 53 M.J. 439,
—(U.S.A.F. 2000).

To determine if a person is a suspect, an objective standard
is used in most cases. “The question is whether a reasonable
person would consider someone to be a suspect under the
totality of the circumstances.” Muirhead, supra, 51 M.J. at 96
(citing Meeks, supra; United States v. Schake, 30 M.J. 314
(C.M.A. 1990)). However, “in some cases, a subjective test
may be appropriate; that is, we look at what the investigator, in
fact, believed, and we decide if the investigator considered the
interrogated person to be a suspect.” Muirhead, 51 M.J. at 96.

In support of his claim that he was a suspect, Brosius argues
the following. First, the CID knew before he was questioned
that the victim Ivon had entered the base in her own car and that
the gate guards had recorded only one other person in the
vehicle. Second, as Nash testified, the CID had already been
“looking aggressively for that one person” at the time of the
interview. Third, Allen knew that Brosius was that person
when the petitioner told him that Ivon had given him a ride back
to the barracks. Fourth, Ewing testified that if the CID agents
had told him there was a conflict between Brosius’s statement

35a

that there was a third person in the car and the gate guards’
logs, he would have been led to suspect the petitioner.

Further, and most importantly, this conflict concerning the
number of persons in the car was the only specific item of
evidence the prosecution presented at the suppression hearing
as justifying the shift in focus from Sparks and Hestekin on June
2 to Brosius on the morning of June 3. Yet this was not new
information; the CID knew it as soon as Brosius told Allen
there was a third person in the car. Nash did testify to “other
evidence” that aroused their suspicion of the petitioner, but that
other evidence was never forthcoming at the hearing and still is
not known. Countering the argument the respondent makes
below about the two existing suspects, Sparks and Hestekin, the
petitioner argues that the existence of other suspects did not
make him a nonsuspect, since there is no rule against there
being more than one or two suspects in a case.

Moreover, after the questioning was over at the River
Building, the CID took the petitioner’s clothing for analysis
since he told them it was the clothing he had worn to the night
club. Because witness clothing is not normally seized, the
petitioner presents this as an additional reason that he was
objectively a suspect on June 2 and should have been read his
Article 31(b) rights.

In opposition, the respondent argues that Brosius could not
reasonably have been considered a suspect on June 2. First,
both Allen and Nash testified that neither one considered him a
suspect. Second, the totality of the circumstances support their
testimony. On June 2, the CID already had two suspects,
Sparks, Ivon’s boyfriend, and Hestekin, Sparks’s roommate. At
the time, it was known that Sparks had a troubled relationship
with Ivon and that Hestekin had returned to the barracks on the
moming of the murder with blood on his shirt, signaling another
soldier to be quiet when he was seen. Both of these men had
been read their rights and both were being held in custody.
Sparks had been sent to the hospital for a sexual-assault
determination.

36a

Further, Nash’s questioning focused on Sparks, not Brosius.
And Brosius’s responses would not have diverted that focus;
Brosius was cooperative, providing incriminating evidence
about Sparks and even remarking that he wanted to do harm to
Sparks and Hestekin. He voluntarily made a sketch of the
parking lot where Ivon let him off.

Additionally, as Nash testified, the conflict between the gate
guards’ logs and Brosius’s statement that there was a third
person in the car would not, and did not, arouse suspicion
because the guards could have been mistaken by not seeing the
third person.

Finally, the respondent points to one specific circumstance
that did change by the morning of June 3, although not relied
upon by the military judge or the appellate military courts;
Hestekin’s alibis were proving to be true, thus leading
investigators to consider Brosius.

We reject the petitioner’s claim that he was a suspect at any
time on June 2. Using the fourth Calley factor, we conclude the
military courts applied the proper legal standard to this
military-law issue and gave it full and fair consideration, even
if other jurists might have decided it differently.

The petitioner has hinged his argument on whether he should
have been considered a suspect under an objective standard.
This is generally the test to apply. However, under military
law, as noted in Muirhead, supra, “in some cases, a subjective
test may be appropriate; that is, we look at what the
investigator, in fact, believed, and we decide if the investigator
considered the interrogated person to be a suspect.” 51 M.J. at
96. The only limitation on this standard is that reliance cannot
be made on the bare representation of the investigators that they
did not consider the defendant a suspect. /d. at 97
(disapproving of heavy reliance on such statements). It is
apparent that the military courts implicitly took into account the
subjective beliefs of agents Allen and Nash, and that it was
proper to do so in this case.

37a

The military judge made certain central findings on this
issue. He found that both Allen and Nash did not believe that
Brosius was a suspect on June 2. This was an entirely proper
finding as to Allen since nothing in the record indicates that he
personally knew about the gate-log entry. The conclusion was
further supported as to Nash because the conflict with Brosius’s
Statement was explainable by a gate guard’s mistake.
Additionally, Brosius’s agitated condition would not have
arouse suspicion because it was normal for someone who had
just lost a friend.

The other findings also support an honest belief on the part
of investigators that Brosius was not a suspect. As detailed
above, the CID already had two valid suspects in custody,
Sparks and Hestekin. The petitioner met Allen while Allen
was interviewing a number of soldiers and was apparently
ready to supply Allen with incriminating evidence on Sparks.
Brosius did in fact supply that information, along with threats
to Sparks and Hestekin. Thus, there was objective evidence in
the record to support the agents’ personal belief that Brosius
was not a suspect.

We note {that the petitioner relies on the seizure of his
clothing at the end of the June 2 interview at the River Building
to support his claim that he had to have objectively been a
suspect on that date. This argument was presented on appeal to
the Court of Appeals for the Armed Forces and rejected. Given
the totality of the circumstances test we must apply here, we
will not disturb the conviction on this basis alone since we can
only decide whether the military courts gave full and fair
consideration to the claim, not whether we would have made
the same decision in their place. That the court’s affirmance
was without discussion does not affect our conclusion. See
Watson v. McCotter, 782 F.2d 143, 145 (10th Cir. 1986);
Jordan, supra, 1998 WL 614694, at *3.

38a

C. The Petitioner's Claim That he Was in Custody, and
Subjected to Custodial Interrogation, on June 2, 1990.

The Petitioner argues that he was in custody when he entered
the orderly room on June 2, 1990, to meet with CID agents
Allen and Robinson, and continued in custody unt] the end of
the interview with CID agent Nash at the River Building. In
support, he relies on the exchange between Allen and Brosius’s
first sergeant when the first sergeant asked Allen if the CID
agents “wanted to see” Brosius, and the reply was “Yes, if he’s
in the area you can send him down.” The first sergeant then
“sent him down.” Brosius was then taken to the River Building
by his Section Sergeant. At the River Building, Nash took over
the questioning and did not tell Brosius he could leave at any
time.

The petitioner also relies on the military judge’s findings of
fact. The military judge made the following findings of fact
bearing on the custody issue:

7) The accused’s First Sergeant, Flynn, told Special Agent
Allen that there was a soldier who was in his battery, who
was with the victim that night.

8) The CID told the First Sergeant that they wanted to
interview this soldier.

9) This soldier was the accused and he was called to the
orderly room.

15) The accused then went to the CID headquarters with
Pickett [the Section Sergeant].

(Doc. 26 at 225-26) (brackets added) (emphasis added by the
petitioner).

In opposition, the respondent asserts that the exchange
between the first sergeant and Allen did not result in an order.
Additionally, Allen let Brosius leave to seek a lawyer at the
River Building, and while he was driven there by his first

39a

sergeant, the first sergeant was an acquaintance of his. F urther,
after Nash completed the questioning at the River Building,
Brosius left and returned to his unit. The respondent maintains
that this was not custody.

The respondent cites no case law in his Support. Brosius
relies on Tempia, supra, 37 C.M.R. 249, 1967 WL 4235, and
United States v. Granda, 29 M.J. 771 (A.C.M.R. 1989).° We
think the petitioner reads too much into these cases. In Tempia,
the Army Court of Military Appeals held that when a suspect
“was ... called to” the investigator’s office, 37 C.M.R. at 252,
1967 WL 4235, “for interrogation,” id. at 256, 1967 WL 4235.
there was custodial interrogation, requiring Miranda warnings.

he court stated:

The test to be applied is not whether the accused,
technically, has been taken into custody, but, absent that,
whether he has been “otherwise deprived of his freedom of
action in any significant way.” Miranda, supra, at page 444.
Here, the accused was clearly summoned for interrogation.
Had he not obeyed, he would have undoubtedly subjected
himself to being penalized for a failure to repair. Code,
supra, Article 86, 10 U.S.C. §§ 886; Manual for
Courts-Martial, United States, 1951. paragraph 127b. In the
military, L.alike civil life, a suspect may be required to report
and submit to questioning quite without regard to warrants or
other legal process. It ignores the realities of that Situation
to say that one ordered to appear for interrogation has not
been significantly deprived of his freedom of action. See
People v. Kelley, 66 Cal. 2d 232 (1967). Hence, we
conclude there was “custodial interrogation” in this case.

Id. at 256, 1967 WL 4235.

Granda dealt with the issue of whether the CID had initiated
contact with a suspect who had previously invoked his

° He also cited the concurring opinion of Judge Cox in United States v.
Lincoln, 42 M.J. 315, 322 (U.S.A.F. 1995).

40a

Miranda rights. In Granda, the Army Court of Military
Review held that when the suspect’s commander was
“requested” to send the suspect to the CID office for
interrogation, the suspect had been ordered to report to the
office and the subsequent questioning had thus been initiated by
the CID.

For Brosius, these cases provide support only for the
proposition that when Allen told the first sergeant to “send him
down” to the orderly room and the first sergeant did so, Brosius
was ordered to appear before the agents. But these cases do
not say that an order by itself creates custody, and in both cases,
unlike here, the defendant was a suspect who had been ordered
to appear for interrogation.

As established above, Brosius was not a suspect on June 2,
and the real issue is not whether he had been ordered to appear
but, as Tempia noted, whether he had been deprived of his
freedom of action in any significant way. Contrary to the
petitioner’s assertion, an order to appear does not automatically
place a soldier in custody. In the Fourth Amendment context of
a seizure of the person, obeying an order to report is only “one
of the factors to consider under the totality of the circumstances,
in determining whether a seizure has occurred.” United States
v. Thomas, 21 M.J. 928, 933 (A.C.M.R. 1986). Thomas cited
United States v. Schneider, 14 M.J. 189 (C.M.A. 1982), also
a Fourth Amendment case. In Schneider, the Court of Military
Appeals decided that there was probable cause to take a
suspect into custody, and hence his seizure was legal, but felt
the need to state that:

In reaching our decision we do not wish to be thought to hold
that every interrogation at the “police station” amounts to
custodial interrogation. The conditions under which an
accused comes to the office bear examination: Did he report
voluntarily? Was he ordered to report? Was he brought in
under guard? Was he a suspect? Further, what relation do
these conditions have to the interrogation? Was the accused
free to leave at any time? May he depart by himself? Must

4la

he remain under guard? Lastly, do these conditions directly
relate causally to the accused’s decision to make a
confession?

Id. at 195 (footnote omitted).

In the instant case, as noted by the respondent, the petitioner
was cooperative at all times, eventually leaving at the end of
the interview at the River Building to return to his barracks. He
was never told he could leave, but he never asked to leave,
which was consistent with a witness cooperating with
authorities, not a suspect.

Additionally, we cannot ignore the factual finding of the
Armny Court of Military Review, concluding that “the appellant
voluntarily appeared before [the CID agents] as a friend of PFC
Ivon wishing to provide them with information that might lead
to the apprehension of her killer.” 37 M.J. at 660 (brackets
added). This finding has a basis in the record from Nash’s
testimony.

We conclude that we should not disturb the military courts’
ruling that Brosius was not in custody.

D. The Petitioner’s Request For Counsel.

Citing Davis v. United States, 512 U.S. 452 (1994), and
Edwards v. Arizona, 451 U.S. 477 (1981), Brosius argues that
counsel should have been appointed for him after he requested
a lawyer twice, first in the orderly room and, second, at the
River Building. Despite the military courts’ finding that the
first request was ambiguous, he insists that the circumstances
indicate he clearly requested counsel at that time. He also
argues that, in any event, the second request was unequivocal.

He also maintains that the military courts applied an
incorrect legal standard to the request for counsel by examining
the motive for the request. He contends that the request should
have been honored once it was made and that his motive for
seeking counsel was irrelevant. Further, in any event, the
military courts’ proffered motives, an impartial observer and

42a

someone to look out for the petitioner’s interests, were proper
ones for seeking an attorney, to guard against police
intimidation and to preserve an accurate record of what Brosius
said to the CID agents.

The petitioner further maintains that the refusal to provide
counsel was compounded by the deception of having Ewing in
the room to create the impression that the CID had provided
counsel by Ewing’s presence.

In opposition, the respondent argues that Brosius was neither
a suspect nor in custody when he made an ambiguous request
for a lawyer in the orderly room. It was equally a request for
his first sergeant, and in this sense was not a request for counsel
at all since he would have been equally satisfied with his first
sergeant. Thus, the CID was not obligated to provide him with
an attorney. He next argues that Brosius never requested a
lawyer when he was at the River Building because the sole
support for this contention, Ewing’s testimony, concerned the
ambiguous request in the orderly room, not a second request at
the River Building.

Additionally, as the military judge’s findings of fact indicate,
respondent contends that Brosius knew Ewing was not his
lawyer and did not act as if he were. Ewing had identified
himself as “working with the cops,” and Brosius never treated
him as his lawyer, for example, by consulting with him during
the interview at the River Building.’

We reject the respondent’s assertion that there was no
second request for counsel. The military judge so found and we
accept that finding. However, we do agree with him that this
claim must fail because both requests for counsel were made in
a noncustodial setting, as determined by the military courts after

’ The respondent also asserts that Brosius acknowledged that he knew
Ewing was “the” prosecutor in the murder case. We reject this because
the record shows that Brosius only knew that Ewing was a prosecutor, and
not the prosecutor in the case.

43a

full and fair consideration of the claim (and when the petitioner
was not a suspect as well). Additionally, assuming Miranda
applies here (which it does not), the first request was
ambiguous, and thus could not be a valid request for counsel.

Miranda only applies to suspects in a custodial setting, so a
requ» t for counsel in a noncustodia! setting does not obligate
law enforcement officers to ensure counsel is present. See
United States v. Hayes, 231 F.3d 663, 2000 WL 1672631, at
*10 (9th Cir. 2000) (Miranda rights do not apply to a voluntary
conversation with a cooperating witness); Alexander v.
Connecticut, 917 F.2d 747, 751 (2d Cir. 1990) (Fifth
Amendment right to counsel did not attach because defendant’s
admissions were made in a noncustodial setting). See also
United States v. Myers, 123 F.3d 350, 359-60 (6th Cir. 1997).
The petitioner’s reliance on Davis, supra, and Edwards, supra,
is misplaced because those cases deait with suspects in
custodial settings.

As the respondent also points out, the first request for
counsel was ambiguous. Contrary to Brosius’s position, the
military judge found that the petitioner had asked for the
presence either of a lawyer or his first sergeant, a finding not
disturbed on appeal. This is an ambiguous request for counsel
that triggers no Fifth Amendment rights. See Davis, supra.

We also think that the respondent’s argument, that Brosius
would have been satisfied with his first sergeant as well as
with a lawyer, provides us with a correct interpretation of the
Army Court of Military Review’s analysis of this issue,
although the respondent did not explicitly put it that way. The
court spoke of Brosius’s intent in seeking counsel, 37 M.J. at
660, but, in context, with an earlier reference on the same page
to the request for counsel or the first sergeant, the conclusion
was that Brosius was asking for someone, not necessarily a
lawyer, to look out for his interests.

Based on the foregoing, we need not discuss the petitioner’s
argument on Ewing’s conflict of interest, at least not in a Fifth

Amendment context. We also note here the military judge’s
factual findings that the petitioner knew that Ewing was not his
lawyer and not working on his case or on his behalf.

E. The Claim that Brosius Invoked His Right To Remain
Silent.

The petitioner also claims that the CID ignored the
invocation of his right to remain silent. However, the record
shows that he was willing to speak and cooperated with the
investigators.

V. Conclusion.

We have considered the petitioner’s remaining arguments,
and although not specifically discussed, we find them without
merit, including the claim that the military judge was biased and
the claim that the military courts failed to make factual findings,
based certain findings on speculation, and left open certain
legal conclusions.

45a

[The following Order was not published in the official reports,
but was included at the end of the district court’s
memorandum. ]

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MICHAEL TODD BROSIOUS,
Petitioner

vs. : CIVIL ACTION
NO. 1:CV-99-1387

WARDEN, UNITED STATES

PENITENTIARY,

LEWISBURG, PA.
Respondent

ORDER

AND NOW, this 13th day of December, 2000, it is ordered
that:

1. The petition for a writ of habeas corpus under 28
U.S.C. §2241 is denied.

2. The motion for oral argument or for a hearing is
denied.

3. The Clerk of Court shall close this file.

/s/
William W. Caldwell
United States District Judge

46a

37 M.J. 652
U.S. ARMY COURT OF MILITARY REVIEW.
UNITED STATES, Appellee,
v.

Specialist Michael T. BROSIUS, 198-54-5517, United
States Army, Appellant.

ACMR 9002732.
10 May 1993.

Before CREAN. WERNER, and GONZALES, Appellate
Military Judges.

OPINION OF THE COURT AND ACTION ON PETITION
FOR NEW TRIAL

WERNER, Judge:

Though charged with premeditated murder, the appellant was
convicted, contrary to his pleas, by a general court-martial
composed of officer and enlisted members of unpremeditated
murder in violation of Article 118, Uniform Code of Military
Justice, 10 U.S.C. § 918 (1982) [hereinafter UCMJ].' The
court sentenced him to a dishonorable discharge, confinement
for life, forfeiture of all pay and allowances, and reduction to
Private El. The convening authority commuted the confinement
portion of the sentence to seventy-five years and approved the
remainder of the adjudged sentence.

' He also pled guilty to communicating a threat to kill a commissioned
officer in violation of Article 134, UCMJ, 10 U.S.C. § 934 (1982).

47a

In this appeal, we address the following assignments of
error:

1. The evidence is legally insufficient to establish the
offense of unpremeditated murder.

Il. The military judge erred in admitting an uncorroborated
pretrial statement from the appellant to military criminal
investigators in which he confessed to Tammy Ivon’s
murder.

Ii]. The military judge erred in denying a defense motion to
suppress certain incriminating pretrial statements in
violation of his rights under the Sth and 14th Amendments.

IV. The military judge erred in failing to dismiss charges
pursuant to Rule for Courts-Martial 707 [hereinafter R.C.M. ]
on grounds that the appellant had been held in arrest for more
than ninety days.

This court also specified the question of whether the
appellant’s plea of guilty to wrongfully communicating a threat
was provident.

Having considered the arguments and briefs of counsel for
the parties, and having reviewed the entire record, we
determine that none of the assigned errors have merit.
Moreover, with regard to the specified issue, we find that the
appellant’s guilty plea was provident.

I. The Prosecution’s Case

On the morning of 2 June 1990 at about 0440 hours, two
sergeants walking near the parking lot adjacent to the enlisted
servicemembers’ barracks on Giebelstadt Kaserne, Germany,
observed a pair of legs protruding from beneath a pickup truck.
Upon investigating, they discovered that the legs belonged to
Private First Class (PFC) Tammy Ivon who was seriously
injured from numerous knife wounds inflicted upon her by an
unknown assailant. One of the sergeants, First Sergeant (1SG)
Gentry, observed that although she was breathing, PFC Ivon’s

48a

pulse was weak, she was moaning, her head twitched, and she
appeared to be in shock. Her jeans were pulled down to her
ankles.

First Sergeant Gentry asked two passersby for help in
assisting PFC Ivon. One of them, PFC Sherard, crawled under
the truck to render first aid. He observed that her pulse was
faint, she moved her hands and opened her eyes. She appeared
to have been bleeding extensively but the blood had dried on
her body and clothing. Her shirt was torn and lay open. Her
jeans, which were pulled down to her ankles, had been cut
through at the pelvic area. Her undergarments appeared to have
been cut from her body and lay under her. First Sergeant Gentry
told PFC Sherard to get a blanket. As he arose, PFC Sherard
noticed an individual staring at him from a road abutting the
parking lot. The two stared at each other for ten to fifteen
seconds before the individual quickly walked away into the
treeline. At trial, PFC Sherard insisted that, although it was
twilight, he saw the individual cleariy enough to identify him as
the appellant.

At about 0507 hours, a medic who had arrived on the scene
pulled PFC Ivon’s body from beneath the truck and attempted
to revive her. Although he felt a slight pulse, he observed that
she had a sucking chest wound and was not breathing. Despite
his resuscitative efforts, PFC Ivon did not regain consciousness
and died from her wounds.

> The appellant had moved to suppress PFC Sherard’s in-court
identification on the grounds that it was unreliable and that it was tainted
by a suggestive pretrial lineup. See Manson v. Brathwaite, 432 U.S. 98
(1977); United States v. Quick, 3 M.J. 70 (C.M.A. 1977). The military
judge correctly denied the motion as the evidence established that PFC
Sherard had the opportunity and time to identify the appellant
uninfluenced by the lineup. Moreover, meteorological data admitted
during the trial proved that, at that time of the morning on the day m
question, there would have been sufficient light to enable PFC Sherard to
make the identification.

49a

An autopsy conducted by a military pathologist, Doctor (Dr.)
Marzouk, revealed that PFC Ivon died as a result of loss of
blood from multiple stab wounds to her vital organs from a
single-edged knife approximately three quarters of an inch wide
and five inches long. The killer had stabbed her four times in
the chest, five times in the abdomen, and had slashed her once
in and around each eye. The autopsy report states, “The stab
wounds did not lacerate the eye globes. The stab wound went
lateral to the eye globe in the left eye, and above the eye globe
in the right eye.” From the angle of entry of the weapon, Dr.
Marzouk concluded that PFC Ivon had been lying on her back
when the fatal blows were administered. The wounds to her
chest were administered through her shirt and tank top; four of
the wounds to her abdomen occurred after her garments were
displaced or removed. There were abrasions and contusions
on her neck and chin as well as hemorrhaging behind the eyes
which, Dr. Marzouk surmised, may have been caused by
strangulation. There were contusions on ner knees and on the
exterior of her genitalia. However, there was no evidence of
motile sperm in or on her body. The autopsy report also noted
that PFC Ivon’s brassiere, tank top, panties and jeans had been
cut through the center of each garment. Toxicological
examination established the presence of a significant amount of
alcohol in her blood but no evidence of drug use.

Dr. Marzouk testified in accordance with the autopsy report.
He added that there was grass on PFC Ivon’s clothing and the
back of her head. In response to a question from the court, he
opined that PFC Ivon could have lived for a period of up to one
to two hours after she had been stabbed.

Later in the morning of 2 June, members of the Criminal
Investigation Command (CID) secured the crime scene and
interviewed potential witnesses on Giebelstadt Kaserne
conceming the circumstances surrounding PFC Ivon’s death. At
the crime scene, they discovered PFC Ivon’s car parked
adjacent to the truck under which her body was discovered.
Blood stains permeated the rear seat of her vehicle and a piece

50a

of her underpants was found on the floorboard. The CID also
found a blood stain on the cab and camper-top of the truck.
There was no forensic evidence to establish the identity of PFC
Ivon’s killer. Nor was the murder weapon found.

The CID first came into contact with the appellant when he
approached them on 2 June with information about PFC Ivon’s
death. The appellant’s roommate, Private (PVT) Casero,
testified that he was awakened about 1110 hours by the
appellant yelling, “Sparks did it.” The appellant explained that
he was referring to the death of PFC Ivon and that he believed
that her boyfriend, PVT Sparks, was the perpetrator. The
appellant also gave this information to his first sergeant who
referred him to Special Agent (SA) Allen, the CID agent
conducting the investigation at Giebelstadt. The appellant
reported that PFC Ivon gave him a ride back to the barracks
from an off-base dance club on the night she was killed and that
a third person was in the car with them. The appellant refused
to identify the third person until “his first sergeant or a lawyer
or someone with his interests” was present to insure that the
information was properly documented. Special Agent Allen,
who was busy with other witnesses, instructed the appellant to
make his report to investigators at the CID office in Wuerzburg.

The appellant complied with SA Allen’s instructions. At the
CID office, he was interviewed by SA Nash. In compliance
with the appellant's request, Captain (CPT) Ewing, a judge
advocate known by the appellant because he had given him
legal advice on a civil law matter two years earlier, was
present. The appellant knew that CPT Ewing was a prosecutor
but did not object to him being present.

At about 2200 hours, 2 June, the appellant made a written
statement in which he stated that he was a close friend of PFC
Ivon and that he saw her on the evening of 1-2 June at the Rock
Palace dance club in Wuerzburg. There, they chatted and
danced together. At 0200 hours, 2 June, she gave him and
another soldier a ride back to Giebelstadt Kaserne where they
entered through the back gate and showed their identification

Sla

cards to the gate guard. He described the soldier in detail and
noted that he sat in the rear of the vehicle behind PFC Ivon, said
nothing, and just stared straight ahead the entire trip. After
arriving at the barracks parking lot at about 0225 hours, he and
the soldier went into their respective barracks while PFC Ivon
remained in the vehicle because she did not want her boyfriend
to see her with them.

The sign-in log for the back gate indicated that PFC Ivon’s
vehicle was driven onto Giebelstadt at 0230 hours and that
there were only two persons in the vehicle. As a result of this
discrepancy, the CID decided to reinterview the appellant as a
suspect. On 4 June, after being warned of and waiving his
rights under Article 31, UCMJ, and the Fifth Amendment, the
appellant agreed to answer questions posed by SA Blackmon.
Special Agent Blackmon testified that appellant reiterated his
earlier version of the events of the evening of 1-2 June.
However, when asked pointed questions, the appellant became
physically agitated and persisted in giving vague answers.
Special Agent Blackmon determined that further inquiry would
be unproductive and terminated the interview.

On 5 June, the appellant was again interviewed by the CID,
this time by SA Dumond. After again waiving his rights, he
reluctantly but definitively confessed, in writing, to killing PFC
Ivon. In this statement, the appellant restated that PFC Ivon
gave him a ride back to the barracks from the Rock Palace, that
they showed their identification cards to the gate guards and
that they parked in the barracks parking lot. Then, in the key
portion of his confession, the appellant stated that there was no
third person in the vehicle. He then described the
circumstances of the homicide:

[S]he bent down to pick up her purse. And also the spiked
wrist band, she had on the floor. And, in the process of her
doing that, she touched my leg. We both then climbed out of
the car and jumped in the back of the car. We started having
sexual intercourse, making love. I realize it, wasn’t nght.
So, I tried stopping her. I started stabbing her with the knife

52a

in the chest and the stomach. She kept on looking at me, so
I took the knife and went across her eyes, so she would stop
looking at me. | got out of the car and went towards the
barracks. I went through the side door, | couldn’t get in to
the first floor, so went to the second floor. When I went on
the second floor, all the lights were out. Thats when I saw
SPC Heeter. He was drunk walking down the hallway. He
ask who I was. So, 1 gave him my name. He said he was
drunk, and I said, at least you are doing better then me, I’m
sober. Then I went from there down the other steps pass the
C.Q. desk. I went to my room and took off my clothes and
went to bed.

In response to specific questions posed by SA Dumond, the
appellant admitted that he killed PFC Ivon because “she’s like
a sister to me. It’s not mght having sexual intercourse. Its like
incest.” He claimed not to remember what kind of knife he
used or whether he cut PFC Ivon’s clothing. He believed that
he stabbed her about nine times but could not particularize the
number of times he stabbed her in the chest and stomach. In
concluding, the appellant stated, “I don’t believe I did it and if
I did I want help. | feel like I falsified the whole statement.”

Several witnesses testified to having seen the appellant
behaving oddly on the morning of PFC Ivon’s death. Private
Casero testified that he believed the appellant had not returned
to his room that evening. He noted that the appellant’s bed was
made when he was awakened by the appellant at about 1110
hours. However, beds were not required to be made on
weekends. He also observed that there was a pile of laundry
nearby.

At 0725 hours, Specialist (SPC) Joseph was walking to his
post as a guard when he saw the appellant coming towards him
from the direction of the bowling alley and recreation center.
However, both facilities were usually closed at that hour. The
appellant appeared shocked and dazed and mumbled a greeting

to him.

53a

At 0730 hours, PFC Reckers, the unit armorer who had just
issued SPC Joseph his weapon, was taking a smoke break
outside the barracks when she saw the appellant come out of the
treeline and enter the building. He said that he had been to the
gym to work out. Private First Class Reckers had worked at the
gym and knew it was closed at that time.

At about 0730-0800 hours, SPC Bajorek saw the appellant
putting two tires into a dumpster. He seemed angry and upset
and had a strange look in his eyes. He said that the girl who had
given him a ride home two hours earlier was dead. He
suspected her boyfriend, PVT Sparks, had killed her and the
appellant threatened to kill him.

At about 0830 hours, PFC Risinger encountered the appellant
at the barrack’s snack machine and asked him if he had heard
about PFC Ivon’s death. The appellant said he had not. When
PFC Risinger told him she had been stabbed, he replied,
“You’re kidding.” At 1000 hours, PFC Risinger saw the
appellant with his laundry bag. The appellant said he was
going to the laundromat.

At 1100 hours, at the laundromat, the appellant told PFC
Reckers that PFC Ivon gave him a ride home the previous
evening and that he might have been the last person to see her
alive. He said he had heard she was stabbed eleven times.

Specialist Tyner testified that as he passed PFC Ivon’s car
at about 0300 hours, he heard a “grunt or a groan or someone
moving” in the car. The windows of the vehicle were fogged
and he could not identify the individuals in it. However, he
thought they were having sex.’

* Specialist Freeman, testifying for the defense, stated that, at about
0230-0240 hours, as he returned to the barracks, he observed two
individuals in a parked car and it appeared they were having sex.

54a

Il. The Defense’s Case

The defense attempted to demonstrate that, notwithstanding
his confession, the appellant was not the perpetrator. It
presented evidence tending to indicate that another individual
committed the crime. It also attacked the appellant’s confession
as uncorroborated and involuntary.

Special Agent Robinson testified that the appellant’s
confession of 5 June was incomplete or erroneous as to certain
part:culars. The appellant purportedly said that he cut PFC
Ivon’s mouth and cheek. He also said that he used a
double-edged, olive drab knife.

Specialist Heeter testified that he saw the appellant on the
second floor of the barracks around the time that PFC Ivon was
killed. Although he had been drinking, he did not notice any
blood on the appellant.

Private First Class Edge testified that she saw the appellant
in the laundromat at about 1100 hours on 2 June. He told her
about PFC Ivon’s death and said that there had been a third
person in the car with them when they returned to the barracks
that morning. He described the individual as big, blond and
wore glasses. However, during cross-examination, PFC Edge
said that the appellant related certain particulars of the crime
that indicated he had detailed knowledge of the crime scene.
For example, he stated that PFC Ivon’s legs were sticking out
from beneath the pickup truck; she had been stabbed in the
chest and stomach nine times; her jeans had been cut and were
pulled down around her boots; and, there was blood on the
side of the truck. Private First Class Edge did not ask how he
had obtained this information.

- Several defense witnesses suggested PVT Sparks may have
had a motive to kill PFC Ivon. They testified that he was a
jealous boyfriend and threatened to kill her if she dated other
men. His roommate testified he owned a hunting knife. After
his arrest, PVT Sparks told his roommate that PFC Ivon had

5Sa

been stabbed eleven times. Other witnesses suggested there
was another unidentified individual who may have been the
perpetrator. After PFC Ivon’s body was discovered, a medic
saw a strange man pacing back and forth in the parking lot.
Later he saw the individual in the mess hall staring into space.
Another witness saw a white man in cowboy boots and jeans
waiking near the barracks at about the time PFC Ivon was
killed.

The appeilant’s mother testified that he had called her in the
United States the evening of 2 June. He told her about PFC
Ivon’s death and related that she had given him and a third
person a ride back to the barracks. He described the individual
as he did for SA Nash, silent and staring straight ahead. Later
that week he told his mother that CID “had his mind so messed
up, that at a point he almost believed he did commit the crime.”
He said he signed a statement but that it was false.

Private First Class Risinger was recalled and testified that
PFC Sherard told him he could not identify the individual he
Saw staring at him near the barracks parking lot.

Ill. Sufficiency of the Evidence

The appellant has styled his challenge to the sufficiency of
the evidence in terms of legal sufficiency. The text of his
argument, however, also raises the issue of factual sufficiency.

The test for legal sufficiency of the evidence is whether,
considering the evidence in the light most favorable to the
government, the trier of fact could rationally find the existence
of every element of the offense beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307 (1979); United States v.
Blocker, 32 M.J. 281, 284 (C.M.A. 1991). The test for factual
sufficiency is whether, after weighing the evidence in the
record of trial and making allowances for not having personally
observed the witnesses, this Court is itself convinced of
appellant’s guilt beyond a reasonable doubt. UCM4 art. 66(c);
United States v. Turner, 25 M.J. 324 (C.M.A. 1987).

56a

We are satisfied of the legal and factual sufficiency of the
evidence in this case. The government’s case rested primarily
on three evidentiary pillars: (1) the objective evidence
establishing that PFC Ivon was stabbed to death sometime
between 0230 and 0440 hours, 2 June 1990, in her automobile
parked near the appellant’s barracks and that the appellant had
been with her at about the time of her death; (2) the
observations of witnesses that the appellant was in the vicinity
of the parking lot on the moming of 2 June, was behaving oddly
at that time, and had knowledge of intimate details of the crime;
and (3) the appellant’s confession to the CID including his
strange behavior during his confrontations with them.

In opposition, the defense pointed out that there was no
forensic evidence—blood, hair, semen, fingernail marks,
bruises—linking the appellant to the crime. Moreover, there
was testimony from a witness, SPC Heeter, who saw the
appellant in the barracks at about the time PFC Ivon was killed
and that the appellant had no blood on him. Specialist Heeter
was, however, intoxicated at the time and his perception may
have been impaired (in his statement of 5 June, the appellant
indicated that the hall lights were out). There was evidence
that the appellant was peaceable and a close friend of the
victim. The defense’s evidence also raised the possibility that
another individual was the killer. Finally, the appellant
asserted that his confession was haltingly made and ambiguous.

Despite the evidentiary conflict, the court members found
that the evidence as a whole established the appellant’s guilt
beyond a reasonable doubt. We see no reason to aiter that
finding. The appellant’s confession and the circumstances
under which it was made contradict his assertion of innocence
notwithstanding its ambiguity as to certain particulars.
Moreover, there were other factors that tended to establish the
appellant’s guilt. These include: (1) his statement that a third
person was in the vehicle when he and PFC Ivon arrived at the
Kaseme was contradicted by the vehicle log maintained at the
back gate indicating only two persons were in the vehicle; (2)

S7a

his knowledge of the number of wounds on PFC Ivon and the
manner in which her clothing was cut; and, (3) his knowledge
of details about the crime scene, such as her legs protruding
from beneath the truck and the blood on the truck. Accordingly,
we reject this assignment of error.

IV. Corroboration of the Confession

The appellant moved to suppress his confession of 5 June on
grounds that it was not corroborated. Military Rule of
Evidence 304(g) [hereinafter Mil. R. Evid.] provides in
material part:

An admission or a confession of the accused may be
considered as evidence against the accused on the question
of guilt or innocence only if independent evidence, either
direct or circumstantial, has been introduced that
corroborates the essential facts admitted to justify
sufficiently an inference of their truth. ... If the independ-
ent evidence raises an inference of the truth of some but not
all of the essential facts admitted, then the confession or
admission may be considered as evidence against the
accused only with respect to those essential facts stated in
the confession or admission that are corroborated by the
independent evidence. . . .

In a recent decision involving the corroboration requirement
of Mil. R. Evid. 304(g), the Court of Military Appeals held:

We have consistently held that it does not require
independent evidence of the “corpus delicti’ of the
confessed offense (see 7 J. Wigmore, Evidence § 2072
(Chadbourn rev. 1978) for a discussion of that term) but,
instead, that it requires independent evidence which
establishes the trustworthiness of the confession. United
States v. Rounds, 30 M.J. 76, 80-81 (C.M.A.), cert. denied,
[498] U.S. [846] (1990); United States v. Melvin, 26 M.J.
145 (C.M.A. 1988); United States v. Yeoman, [25 M.J. |
(C.M.A. 1987)]. These holdings are consistent with

58a

Supreme Court precedent and with practice in Federal
civilian courts such that it can be realistically said in the
Federal sector that the “corpus delicti” corroboration rule no
longer exists. The bottom line is that the corroborating
evidence must raise only an inference of truth as to “the
essential facts admitted” in the confession. (citations and
footnote omitted).

United States v. Maio, 34 M.J. 215, 218 (C.M.A.). cert.
denied, 506 U.S. 868 (1992).

The Court has also heid, “Although no mathematical formula
exists to measure sufficient corroboration, our review of the
federal court decisions cited below leads us to conclude that
the amount of corroboration generally needed is not great.”
United States v. Melvin, 26 M.J. at 146. On the basis of the
foregoing criteria, we hold that the appellant’s confession was
sufficiently corroborated by independent evidence to establish
its trustworthiness.

First, the objective evidence in the autopsy report confirmed
the number and type of wounds the appellant admitted to having
administered to PFC Ivon. He admitted that he stabbed her
about nine times with a knife and that he “went across her eyes”
so she would not look at him; the autopsy report was consistent
with those admissions. The appellant admitted to having sexual
intercourse with PFC Ivon; the autopsy report indicated her
genital area was bruised. Moreover, two passersby testified
that they thought two individuals were having sex in PFC Ivon’s
car at the approximate time of her death. Second, SPC Heeter
corroborated the appellant’s admission to having seen him in
the barracks after stabbing PFC Ivon. Third, the testimony from
several witnesses that the appellant said he had been to the gym
and laundromat dovetailed with portions of the confession.
Collectively, this independent evidence establishes that this
assigned error is without merit.

59a

V. Admissibility of the Appellant’s Pretrial Statements

The appellant contends that his pretrial statements to the CID
on 2, 4, and 5 June should have been suppressed as they were
obtained in violation of his right to the presence of legal
counsel during their initial and subsequent custodial
interrogations. Edwards v. Arizona, 451 U.S. 477 (1981):
Miranda v. Arizona, 384 U.S. 436 (1966). We disagree.

It is undisputed that the appellant was advised of and waived
his rights during the interrogations of 4 and 5 June. The CID
agents conducting those interrogations, SA Blackmon and SA
Dumond, testified that they suspected the appellant of killing
PFC Ivon, gave him the requisite warnings, and obtained the
appellant’s consent to be interviewed and make a statement
without counsel present. However, the appellant argues that
those interrogations were tainted by the violation of his right to
counsel by SA Allen and SA Nash during his meetings with
them on 2 June. He maintains they should have reasonably
considered him a suspect when he approached both agents with
information about PFC Ivon’s killing because he was
emotionally upset and agitated, and they should have
immediately advised him of his right to counsel. Furthermore,
when he requested that his first sergeant or a lawyer be present
to witness his statement, the agents should have obtained legal
representation for him instead of bringing in a prosecutor.

Unfortunately for the appellant, the evidence does not
support his characterization of the events of 2 June. The
appellant was neither in custody nor reasonably suspected of
killing PFC Ivon by the CID agents with whom he spoke on that
date. The CID agents testified that the appellant voluntarily
appeared before them as a friend of PFC Ivon wishing to
provide them with information that might lead to the
apprehension of her killer. The fact that he was distraught or

* See also United States v. Harris, 19 M.J. 331 (C.M.A. 1985): United
States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967).

60a

gnief-stricken would not lead a reasonable criminal investigator
to have suspected him of an offense since that is not suspicious
behavior from a friend of a crime victim.

Moreover, the appellant’s request that a lawyer be present
while he spoke with the CID did not, under the circumstances,
constitute a request for legal counsel even assuming there was
a custodial interrogation. Invocation of the nght to counsel must
be unequivocal and unambiguous. United States v. Schake, 30
M.J. 314, 317 (C.M.A. 1990); United States v. Dock, 35 M.J.
627 (A.C.M.R. 1992), pet. granted, --- M.J. ---- (C.M.A.
1993). While the appellant said that his purpose for requesting
that CPT Ewing be present was to look out for “his interests,”
in context, he was referring to something other than his potential
culpability for the killing. We therefore reject this assigned
error as unmeritorious.

VI. Speedy Trial

The appellant contends that he was improperly held in arrest
for a period in excess of ninety days and that his motion to
dismiss the charges for lack of speedy tral pursuant to Rule for
Courts-Martial 707(d) and (e) should have been granted.’ We

* At the time of the appellant's trial, R.C.M. 707(d) and (e) provided, in
part: ‘

(d) Arrest or confinement. When the accused is in pretrial arrest or
confinement under R.C.M. 304 or 305, immediate steps shall be taken
to bring the accused to trial. No accused shall be held in pretrial arrest
or confinement in excess of 90 days for the same or related charges.
Except for any penods under subsection (c\7) of this rule, the periods
described in subsection (c) of this rule shall be excluded for the
purpose of computing when 90 days has run. The military judge may,
upon a showing of extraordinary circumstances, extend the period by
10 days.

(e) Remedy. Failure to comply with this rule shall result in dismissal
of the affected charges upon timely motion by the accused.

Rule for Courts-Martial 707(d) and (e) was subsequently changed by

6la

agree with the military judge that the appellant was not denied
a speedy trial.

The chronology surrounding the appellant’s arrest and
pretrial restraint was set forth in a stipulation of fact. The
parties agreed that, after he confessed to killing PFC Ivon, the
appellant was placed in a military police detention cell on 6
June. On 7 June, he was released to his unit where he was
housed in the unit fire direction center (FDC) on Giebelstadt
Kaserne for two days.® From 9 June to 12 June, the appellant
received a psychiatric evaluation at a military hospital in
Frankfurt. On 12-13 June, he was returned to the FDC on
Giebelstadt before being relocated to the Initial Readiness
Position (IRP) at Larson Barracks in Kitzingen, fifteen
kilometers from Giebelstadt, where he remained until 21 July.’
On that date, the charges were preferred and the accused was
ordered into pretrial confinement. Eighty days later, on 9
October, the initial session of the court-martial was held. The
total time the appellant spent in pretrial restraint was one
hundred and twenty-five days.

After a hearing, the military judge found that twenty-eight
days of the period in which the appellant was restrained was
excludable from governmental accountability pursuant to
R.C.M. 707(c). He excluded twenty-seven days during which
the appellant underwent mental evaluation under R.C.M.
707(c\ 1A) and hospitalization as a suicide risk, and one day
when there was no restraint.

Executive Order No. 12767, dated 27 June 1991, and incorporated as
part of Change 5 to the Manual for Courts-Martial.

® The FDC was described as a small military compound, forty yards
square, with limited recreational facilities, surrounded by barbed wire.

’ The IRP was described as a “fenced in site . . . approximately three city
blocks wide . . . with concertina on top, all the way around. .. .” There was
a barracks on the site that housed ninety-five soldiers.

62a

The judge also determined that the thirty-three days during
which the appellant was restricted to the IRP did not constitute
restriction tantamount to arrest as the conditions of the
appellant's restraint were not sufficiently onerous to support
that determination. The evidence supporting the judge's ruling
established that, the appellant was required to perform all
military duties; was not deprived of personal items; was
granted access to recreational ‘acilities outside the IRP; and
was assigned a separate room in a barracks on the IRP. The
judge noted that the appellant could not leave the IRP unless he
had an escort, that he was not allowed to wear civilian clothing
and that his pass privileges were revoked for brief periods.
However, on balance, these factors did not weigh as heavily in
the judge's decision.

In determining whether pretnal restnction constitutes pretrial
arrest or confinement, this court has declined to articulate a
“bright line” test. Instead, it looks at the totality of the
circumstances surrounding the restraint. “As the terms of a
pretrial restriction become increasingly onerous, the nature of
the accused's pretrial restraint moves further along the
spectrum between restriction and confinement, until it finally
becomes restriction tantamount to confinement.” (footnote
omitted). United States v. Gregory, 21 M.J. 952, 955
(A.C.M.R.), aff'd, 23 M.J. 246 (C.M.A. 1986). We find, as did
the military judge, that the appellant's pretrial restraint was not
SO onerous as to exceed the level normally representative of
restriction. While restriction is a form of restraint which
entitles an accused, upon conviction, to administrative credit,
see United States v. Russell, 30 M.J. 977 (A.C.M.R. 1990), or
to dismissal of charges for a delay in excess of one hundred and
twenty days, see R.C.M. 707(a), it does not justify dismissing
charges for delays over ninety days. Accordingly, as the
amount of time spent in pretrial arrest or confinement did not
exceed ninety days, the appellant's motion to dismiss was
properly denied.

63a

VIL. Specified Issue

The question posed by the specified issue is whether the
appellant's plea of guilty to wrongfully communicating a threat
to kill a company commander, CPT Logan, on 12 May 1990
was improvidently entered when the appellant stated during the
providence inquiry that he was intoxicated at the time he made
the threat. We answer that question in the negative.

The appellant informed the military judge that he and some
friends had been drinking alcoholic beverages late into the night
when they began discussing the fact that one of their fnends had
been convicted for trafficking in narcotics. Angered at his
friend's commanding officer for initiating disciplinary action,
the appellant called the charge-of-quarters (CQ) and, in his
drunken state, informed him of his intention to kill CPT Logan.
The appellant admitted that he was “serious” in making the
threat.

Two principles of military law militate against rejecting the
appellant's plea. First, a plea of guilty need not be set aside
because the information elicited at trial raises only a possibility
that a defense to the charge may exist. United States v. Logan,
22 U.S.C.M.A. 349, 47 C.M.R. | (1973). Rather, there must be
a substantial basis for the defense. United States v. Prater, 32
M_J. 433 (C.M.A. 1991). Second, voluntary intoxication is not
a defense to a general intent crime since the unlawful act itself
is presumptive of the accused’s mens rea. R.C.M. 916(1 (2).
Wrongful communication of a threat is such a general intent
crime and an accused's voluntary intoxication would not furnish
him with an excuse for his misconduct. United States v.
Humphrys, 7 U.S.C.M.A. 306, 22 C.M.R. 96 (1956). We note
that voluntary intoxication could vitiate a guilty plea if it
implicated a substantial basis for showing “that the declaration
was made in jest or for some other innocent and legitimate
purpose.” /d. at 307, 97. However, the appellant's responses
during the providence inquiry clearly negate that possibility.

64a

VILL. Petition for New Trial

The appellant also asserts that he should be granted a new
tnal on the basis of newly-discovered evidence. UCMJ art. 73;
R.C.M. 1210(f)(2). In support, he has filed and we have
admitted numerous appellate exhibits in support of his argument
that someone other than the appellant may have killed PFC
Ivon. Having examined these exhibits and considered the
appellant's arguments, we deny his petition.

For a petition for a new trial to lie, the appellant has the
burden of demonstrating that the “new evidence” was
discovered after conclusion of the tnal, that it was not
discoverable through due diligence at the time of trial, and that
it “would probably produce a substantially more favorable
result for the accused.” /d. We perceive nothing in the
appellant’s exhibits to lead us to conclude that the matters
contained therein would enable the appellant to meet any
portion of the tri-part test.

We have considered the remaining assignments of error to
include those personally submitted by the appellant pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and
find them to be without merit.

Accordingly, the findings of guilty and the sentence are
affirmed. The appellant’s Petition for a New Trial is denied.

Senior Judge CREAN and Judge GONZALES concur.

6Sa
39 M.J. 378
UNITED STATES COURT OF MILITARY APPEALS
Daily Journal
Wednesday, January 26, 1994
94-75

APPEALS—SUMMARY DISPOSITIONS

***

No. 93-1421/AR. U.S. v. Michael T. Brosius. CMR
9002732. On consideration of the petition for grant of review
of the decision of the United States Army Court of Military
Review, it is ordered that the petition for review is hereby
granted; and that the decision of the United States Army Court
of Military Review is affirmed. (See also ORDERS
GRANTING PETITION FOR REVIEW this date. |

ORDERS GRANTING PETITION FOR REVIEW

***

No. 93-1421/AR. U.S. v. Michael T. Brosius. CMR
9002732. [See also APPEALS—SUMMARY DISPOSI-
TIONS this date. ]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1095%3A2. Public record. Not legal advice.